Murphy v. Felker

Filing 52

ORDER signed by District Judge George H. King on 10/27/2011 ORDERING that based on the foregoing, as well as the reasons set forth in the Respondent's 48 Answer to the 44 Petition and to the First Amended Petition, both the Petition and the First Amended Petition are DENIED. Moreover, we find and conclude that Petitioner has not made a substantial showing of a violation of his constitutional rights. Accordingly, a certificate of appealability is also DENIED. CASE CLOSED. (Duong, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARQUIEST LEON MURPHY,

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Petitioner,
vs.
T. FELKER,

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Respondent.

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NO. CIV S-08-0256-GHK
ORDER DENYING (1) PETITION
FOR WRIT OF HABEAS CORPUS;
AND (2) CERTIFICATE OF
APPEALABILITY

On July 27, 2011, we deemed Petitioner’s June 9, 2011 Petition to

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be his First Amended Petition (“FAP”), but stated that it does not

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supersede his initial Petition.

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the claims in the initial Petition.

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Respondent to also answer the separate claims set forth in the FAP.

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Respondent has now done so, and Petitioner has filed his reply.

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claims in the initial Petition and the FAP are now ready for decision.

Respondent had previously answered
In that Order, we directed

The

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I.

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In his initial Petition, Petitioner raised nine claims.

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some of these claims should be grouped for analytical purposes, we

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rule on them as follows:

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Initial Petition
Because

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A.

Insufficiency of the Evidence Claims (Claims One, Two,

Seven, and Eight)
Petitioner claims there was insufficient evidence to prove that

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he was responsible for the shootings, thus undermining the sufficiency

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of the evidence to support his attempted murder convictions.

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Moreover, he argues that there was insufficient evidence to support

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the personal use of a firearm and the great bodily injury

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enhancements.

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Viewing the evidence in the light most favorable to the

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prosecution, we conclude that a reasonable jury could have found the

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essential elements of the crime/enhancement beyond a reasonable doubt.

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Jackson v. Virginia, 443 U.S. 307, 319 (1979).

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that the state courts’ rejection of these claims was neither contrary

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to, nor involved an unreasonable application of, clearly established

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federal law, as determined by the Supreme Court, nor was based on an

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unreasonable determination of the facts in light of the evidence

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presented.

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Petitioner is not entitled to habeas relief on Claims One, Two, Seven,

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and Eight.

28 U.S.C. § 2254(d).

Moreover, we conclude

Accordingly, we conclude that

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B.

Improper Admission of Gang Evidence (Claim Three)

Petitioner claims the trial court improperly admitted gang

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evidence in his trial.

We disagree.

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was relevant at least as to motive.

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not available for mere error under state evidence law.

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Petitioner’s constitutional rights, the admission of the evidence must

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have so fatally infected the proceedings as to render them

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The evidence that was admitted
In any event, habeas relief is
To implicate

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fundamentally unfair.

Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th

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Cir. 1991).

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admission of the gang evidence did not render Petitioner’s trial

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fundamentally unfair.

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likewise is neither contrary to, nor involved an unreasonable

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application of, clearly established federal law, as determined by the

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Supreme Court, nor was based on an unreasonable determination of the

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facts in light of the evidence presented.

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Petitioner is not entitled to habeas relief on Claim Three.

Given the totality of the evidence at trial, the

The state courts’ rejection of this claim

28 U.S.C. § 2254(d).

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C.

Prosecutorial Misconduct (Claims Four, Five, and Six)

Petitioner claims the prosecutor committed misconduct (1) during

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closing argument, (2) in suggesting that defense counsel had coached a

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witness,1 and (3) by presenting false testimony.

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court determines whether there was a violation of due process, not

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whether any purported misconduct should be corrected under a court’s

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supervisory powers.

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Our review is limited to determining whether the prosecutor’s conduct

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so infected the trial with unfairness as to make the resulting

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conviction a denial of due process.

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U.S. 637, 643 (1974).

A federal habeas

Darden v. Wainwright, 477 U.S. 168, 181 (1986).

Donnelly v. DeChristoforo, 416

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It is unclear if Petitioner also meant to claim that his
counsel was ineffective for failing to seek an admonition of the
prosecutor from the court following what Petitioner characterized
as the prosecutor’s purported suggestion that defense counsel had
coached a witness. No fair reading of the proceedings supports
such an inference. In any event, we conclude that counsel was
not unreasonable for failing to seek an admonition, and that
there is no reasonable probability that but for counsel’s failure
the result would have been different. See Strickland v.
Washington, 466 U.S. 668, 688 (1984).
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In this case, none of these instances of alleged prosecutorial

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misconduct comes close to violating Petitioner’s due process rights

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for, among other reasons, those set forth by the State Court of

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Appeal’s decision and the Respondent’s Answer.

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the state courts’ denial of relief is neither contrary to, nor

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involved an unreasonable application of, clearly established federal

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law, as determined by the Supreme Court, nor was based on an

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unreasonable determination of the facts in light of the evidence

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presented.

We thus conclude that

28 U.S.C. § 2254(d).

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D.

Sentencing Error (Claim Nine)

Petitioner claims the trial court erred by imposing an upper term

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based on facts that were neither found by a jury nor admitted by him.

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See Cunningham v. California, 549 U.S. 270, 274 (2007).

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state courts’ determination that there was an adequate independent

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basis for the upper term due to, among other things, the court’s

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finding that Petitioner had suffered numerous prior convictions was

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neither contrary to, nor involved an unreasonable application of,

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clearly established federal law, as determined by the Supreme Court,

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nor was based on an unreasonable determination of the facts in light

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of the evidence presented.

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entitled to habeas relief on Claim Nine.

28 U.S.C. § 2254(d).

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However, the

Petitioner is not

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II.

First Amended Petition
Petitioner adds two claims in his First Amended Petition.

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A.

Newly Discovered Evidence/Actual Innocence (Claim One in

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First Amended Petition)

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The state court held an evidentiary hearing during which the

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witness who had purportedly recanted his trial testimony testified and

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denied writing the text of the recantation but reaffirmed the truth of

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his trial testimony.

The state court judge found as a matter of fact

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that Petitioner had failed to show the witness had lied at trial, and

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that even if a new trial were ordered, it was not reasonably probable

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that any different result would occur.

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We find and conclude that the state courts’ denial of this claim

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is neither contrary to, nor involved an unreasonable application of,

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clearly established federal law, as determined by the Supreme Court,

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nor was based on an unreasonable determination of the facts in light

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of the evidence presented.

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28 U.S.C. § 2254(d).

We come to the same conclusion with respect to the state courts’

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denial of Petitioner’s subsequent attempt to present yet another

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recantation by the same witness.

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purported second recantation as patently unbelievable, and held that

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Petitioner had failed to show prejudice.

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state court, this conclusion was not contrary to, nor involved an

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unreasonable application of, clearly established federal law, as

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determined by the Supreme Court, nor was based on an unreasonable

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determination of the facts in light of the evidence presented.

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U.S.C. § 2254(d). As such, habeas relief remains unavailable

The state court rejected the

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On the record before the

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regardless of the nature of any additional evidence Petitioner might

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present at an evidentiary hearing before us to explore the witness’s

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current version of his testimony.

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1388, 1400 (2011).

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Cullen v. Pinholster, 131 S. Ct.

In any event, “[t]o be credible, [a claim of actual innocence]

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requires petitioner to support his allegations of constitutional error

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with new reliable evidence – whether it be exculpatory scientific

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evidence, trustworthy eyewitness accounts, or critical physical

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evidence - that was not presented at trial.

Because such evidence is

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obviously unavailable in the vast majority of cases, claims of actual

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innocence are rarely successful.”

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(1995).

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reasonable juror would have convicted him in light of the new

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evidence.”

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Schlup v. Delo, 513 U.S. 298, 324

Petitioner “must show that it is more likely than not that no

Id. at 327.

Petitioner’s purported new evidence consists of multiple

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contradictory statements by the witness.

His trial testimony

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inculpated Petitioner at trial.

His May, 2008 Declaration purported

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to recant his trial testimony.

At the state evidentiary hearing, the

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witness said he had only signed a blank document to “help the

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[Petitioner].”

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of the first Declaration that purported to recant his trial testimony,

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and denied any intent to assist Petitioner by recanting his trial

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testimony.

To the contrary, the witness reaffirmed his trial

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testimony.

Thereafter, Petitioner submitted another purported

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Declaration by this witness in which he supposedly recants his

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evidentiary hearing testimony.

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sworn statements made by the witness, we conclude that Petitioner has

He denied any familiarity with the purported contents

Based on the multiple conflicting

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not satisfied the Schlup standard.

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of this further attempt to use yet another purported recantation is

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likewise neither contrary to, nor involved an unreasonable application

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of, clearly established federal law, as determined by the Supreme

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Court, nor was based on an unreasonable determination of the facts in

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light of the evidence presented.

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Thus, the state courts’ rejection

28 U.S.C. § 2254(d).

Petitioner is not entitled to relief on Claim One in his First
Amended Petition.

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B.

Ineffective Assistance of Counsel at Habeas Evidentiary

Hearing (Claim Two in First Amended Petition)
This claim fails because Petitioner has no constitutional right

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to assistance of counsel during state collateral proceedings.

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Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez,

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999 F.2d 425, 429 (9th Cir. 1993).

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to show any grounds for habeas relief.

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this claim is neither contrary to, nor involved an unreasonable

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application of, clearly established federal law, as determined by the

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Supreme Court, nor was based on an unreasonable determination of the

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facts in light of the evidence presented.

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Petitioner is not entitled to relief on the Second Claim in his First

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Amended Petition.

Accordingly, Petitioner has failed

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The state courts’ rejection of

28 U.S.C. § 2254(d).

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III.

Conclusion

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Based on the foregoing, as well as the reasons set forth in the

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Respondent’s Answer to the Petition and to the First Amended Petition,

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both the Petition and the First Amended Petition are DENIED.

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Moreover, we find and conclude that Petitioner has not made a

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substantial showing of a violation of his constitutional rights.

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Accordingly, a certificate of appealability is also DENIED.

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IT IS SO ORDERED.

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DATED:

10/27/11

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George H. King
United States District Judge2

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United States District Judge for the Central District of
California sitting by designation.
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